Investigatory Powers Bill (Eleventh sitting)

John Hayes Excerpts

Committee Debate: 11th sitting: House of Commons
Tuesday 26th April 2016 Public Bill Committees

[Keir Starmer]

It is a pleasure to continue to serve under your chairmanship, Ms Dorries. I, too, welcome the right hon. Member for Chelmsford and thank him for helping the Committee with its work.

We turn to clause 138, which deals with the second of the bulk warrants that we are discussing, the bulk acquisition warrants. I will start where I started with the last bulk power by observing the breathtakingly broad nature of this one. The communications data that can be subject to a bulk warrant are the what, where and how of a communication without disclosure of the content, as well as a person’s location, the type of equipment used and the duration of its use. The data can therefore paint a detailed picture of somebody’s life, so accessing it is a significant interference with privacy.

Clause 138 involves the bulk acquisition power that was first avowed in November last year, only about six months ago, making it one of the more recent avowals. At the time, David Anderson told the BBC that

“the law was so broad and the information was so slight that nobody knew it was happening”,

adding that it was

“so vague that anything could be done under it”.

David Anderson and others are concerned about the breadth of the power. For that reason among others, I repeat the call for more work on the operational case. I will not go over the points I made last Thursday in your absence, Ms Dorries, but where a newly avowed power is as broad as this one, the need for an operational case is heightened.

The power is not limited to those overseas, which is a material difference from the bulk power that we considered at the tail end of last week. If there is to be such a bulk power, the safeguards are extremely important, but here we run straight into the same problem as we did with the last bulk power: although clause 138 includes a necessity and proportionality test, it bites on very broad objectives. In clause 138(1)(a), we see that the Secretary of State can issue a bulk warrant if she

“considers that the warrant is necessary—

(i) in the interests of national security, or”,

under subsection (2),

“(a) for the purpose of preventing or detecting serious crime, or

(b) in the interests of the economic well-being of the United Kingdom”.

The same very broad powers apply to the issuing of a very wide bulk warrant.

Last time we considered bulk powers, I was able to go to the code of practice, which gave more detail about the necessity and proportionality test. In this case, paragraph 4.5 of the code of practice does not add much to what is on the face of the Bill. The Government might want to consider whether necessity and proportionality are dealt with consistently in the codes for each of the bulk powers. There is more detail in paragraphs 9.3 and 9.7, the latter of which is telling:

“More than one operational purpose may be specified on a single bulk warrant; this may, where the necessity and proportionality test is satisfied, include all operational purposes currently in use. In the case of bulk acquisition, BCD relevant to a number of operational purposes may be acquired on a single warrant. In the majority of cases, it will therefore be necessary for bulk acquisition warrants to specify the full list of operational purposes.”

This is another case where, in truth, few warrants will cover many operational purposes, yet the constraints of clause 138 are simply by reference to the interests of national security, to preventing or detecting serious crime and to the interests of economic wellbeing so far as they touch on the interests of national security.

I repeat and reassert the points made on the previous bulk warrant measure. Lifting some of the more detailed analysis of the safeguard and test from the code into the Bill is required to make clause 138 meaningful. That is made good in clause 141, which states:

“In specifying any operational purposes, it is not sufficient simply to use the descriptions contained in section 138(1)(a) or (2), but the purposes may still be general purposes.”

The other point made about this warrant is that it applies not only to the retention or obtaining of data but to the examination of those data. I repeat the point I made last week about the Tom Watson and David Davis case, which is currently being heard. The question in that case is whether there are specific safeguards for access when data are retained, and the proposition accepted by the divisional court is that the safeguard should be for serious crime and that there should be a degree of judicial oversight. The Court of Appeal will now form its own view on that, but the Bill’s safeguard for examination is without any teeth, because the test for examination is the test of necessity, as set out in clause 138, coupled with the test of clause 141, which says that simply citing the national interest, preventing crime, et cetera, is not enough, but that general purposes may be sufficient.

Clause 151—I am skipping beyond clause 138, but one has to see these three things together—is shorter than clauses in other parts of the Bill that address bulk powers, and it simply sets out:

“For the purposes of section 150 the requirements of this section are met in relation to the communications…obtained under a warrant if any selection…is carried out…for the specified purposes…and the selection…is necessary and proportionate in all the circumstances.”

Those purposes relate back to clause 141, which says that, although someone seeking a warrant cannot get away with simply citing national security and serious crime, they do not have to go much further. On analysis, the test for examining for selection data that have been obtained under this wide bulk power is, in fact, a necessity and proportionality test that is no different from the test applied to the holding of the data in the first place. In other words, there is no differentiation between the test for holding, retaining or acquiring the data and the test for examining it at some later stage. I made that point last week, and it arises again in relation to this very wide bulk power.

The only other thing I will say at this preliminary stage is that I think I am right in saying that, in relation to this bulk warrant, there are no specific provisions for legal professional privilege, for the correspondence of MPs or for journalistic material. That has cropped up in our previous discussions and I think the Solicitor General is giving further consideration to whether, in some circumstances, the fact that there is a communication with a lawyer, even though the content is not there, may need at least some reconsideration in terms of how it is dealt with in the Bill.

Therefore, I will not go into long submissions on legal professional privilege, but it is essentially the same point, namely the assumption that if it is not pure content no privilege attaches and no concerns arise may be misplaced. I have asked the Solicitor General and the Security Minister, to take this point under the umbrella of consideration when he looks again at legal professional privilege.

Against that background, the amendments really speak for themselves. They are tightening amendments intended to sharpen the test in clause 138, which, as I say, at the moment is breathtakingly wide.

[The Minister for Security (Mr John Hayes)]

I again welcome you to the Chair, Ms Dorries.

I will start by saying that it is vital that the whole Committee understands two points—I think it does, but I will amplify them for the sake of the record. The first is that access to communications data is vital to securing our safety. Communications data play a critical role in almost all the major investigations in respect of terrorism and a very large part in the work of the law enforcement, security and intelligence services. That much is a given.

The second point is that the powers in the clause are not new; they are routinely used for the purposes that I have described. When you were last in the Chair, Ms Dorries, the shadow Minister said:

“As the Minister has said, it is a good thing that the powers that had previously been exercised by the security and intelligence services are now avowed on the face of the Bill.”––[Official Report, Investigatory Powers Public Bill Committee, 12 April 2016; c. 92.]

He is right: it is important that, for the first time, these powers are brought together in a single piece of legislation, making them more understandable, more transparent and more comprehensible.

As the hon. and learned Gentleman also said, it is vital that there are appropriate safeguards in place. Consideration of the clause and the amendments this morning enables us to explore the adequacy of the safeguards and, as we have discussed in previous debates, whether what is already in the Bill is sufficient. In that context, he is right to draw attention to the code of practice. Paragraphs 9.7 and 9.8 describe the particular circumstances that might apply in respect of a bulk acquisition. The code of practice emphasises that a test of necessity and proportionality must be applied to all these matters, but also makes it clear that the operational purposes of the warrant are salient, too.

Ms Dorries, we had a debate in your absence about whether the operational case should be explored in more detail at the outset. Like the hon. and learned Gentleman, I will not reprise that debate, but for your benefit I will say that, in essence, the case he made was that there should be some independent means by which we test the validity of that operational case. The hon. and learned Member for Edinburgh South West, who speaks for the Scottish National party, made essentially the same case. My hon. and learned Friend the Solicitor General and I, having listened to what they said last week, reflected upon it and discussed it, can see that there is some merit in that argument. I will not say more than that today, but I thought their case was reasonable and we might want to look at it.

Of course these matters are sensitive, because as soon as we start to explore operational matters related to the security and intelligence services, we get into that area of what we can and cannot put in the public domain. That is a challenging tightrope—I suppose all tightropes are challenging by definition, but to walk the one between protecting the public interest and protecting the capacity and effectiveness of our security services is particularly challenging. Nevertheless, the case that the hon. and learned Gentleman made about the need for greater scrutiny is interesting.

When it comes to the work we are considering today, it will be beneficial for the Committee to look again at the operational case for bulk powers, which sets out how bulk data are used. Not only does paragraph 5.1 clearly make the case that

“The power to acquire and analyse bulk data is crucial to the security and intelligence agencies’ effectiveness”,

but it also says that those powers are used alongside others, and where others are more appropriate, bulk is not used as a default position—an important point to make, because I think there is a misassumption that that may not be the case. It also says that the capabilities are used to deal with

“high-priority and…emerging threats from individuals not previously known to the security and intelligence agencies”

and that they are vital to disrupting threats of that kind. Fundamentally, it says that they are

“often the only means to acquire intelligence about overseas and online threats to the UK.”

The code of practice then sets out the essential character of those powers, which I will sum up by saying that often in dealing with those threats and deciding how best to counter them, the intelligence and security agencies will have mere fragments of information; they will need to search widely to piece together from those fragments sufficient information to clarify the nature of the threat and to put into place the measures to deal with it; and the collection of data in that respect is fundamental to the work of GCHQ in particular. The idea that that is done without specificity, in a capricious way, is completely at odds with the mission of those organisations, with the safeguards in place here and with common sense. It is not in the interests of anyone to collect data beyond the purpose that I have described, to piece together information, to facilitate better investigation of threats to our national security.

[Keir Starmer]

I am grateful to the Minister for laying out the background and the way in which the warrants will operate. He makes a powerful case for putting some of that detail in the Bill, because if that is the actual operation, nothing could impede its effectiveness if something more specific is put in the Bill—obviously not the specifics of every operation, but something better than the very general test in the Bill. That would not cut across the operation of the warrants and would be consistent with their use as the Minister describes it.

[Mr Hayes]

That is the essence of the case the hon. and learned Gentleman makes in his amendments, but before I come to that I want to take this opportunity to set out some of the broader arguments. I am sure that members of the Committee do not need to be disabused of this, because they are extremely well informed and have read the Bill with a scrupulous diligence that is quite impressive, but the wider public may have a misconception about the nature of the powers and what they are there for. I have already dealt with the misconception that these powers are new; they certainly are not, but let me put that into even sharper focus.

In 2010, a group of terrorists were plotting attacks on the UK, including on the London stock exchange. The use of bulk communications data played a key role in the MI5 investigation, allowing investigators to uncover the terrorists’ network and to understand their plans. That led to the disruption of their activities and successful convictions against all the group’s members. This is not an academic debate; it is not a common room discussion among civilised people who take due care of these matters. This is about the day-to-day threats we face and how we counter them. These powers have been and are used to disrupt threats precisely as I have described.

--- Later in debate ---

[Keir Starmer]

In a sense, we are on common ground here. Clause 141 adds to clause 138 and, as the Minister says, indicates that what is set out in clause 138(1)(a) and (2) is not sufficient, but if what comes after the comma—

“but the purposes may still be general purposes”—

is the case, there is no indication of the specific matters that must be listed. More is given in the code, and one has to remember that it is against that operational case that the judicial commissioner then conducts his or her analysis of necessity and proportionality. That is why it is so important. The question is really whether some of what is in the code of practice should not be lifted into the provisions of clause 141.

[Mr Hayes]

Let me draw my remarks to a conclusion so that we can move on with appropriate alacrity, having set out the broad argument. There are two points. The first is whether more of what is in the code should be put in the Bill and whether that would be helpful. The judgment to be made is whether the Bill is sufficient as it stands. Is the amendment unnecessary because of the requirement that a warrant be issued lawfully and the proper constraint that that places on those who make that decision? Secondly, going back to the hon. and learned Gentleman’s case about the operational case, given that there will be a stringent internal process to ensure that any warrant presented to the Secretary of State is compliant with the statutory requirements, could we say more about the operational purposes?

A combination of those two things would entirely satisfy the hon. and learned Gentleman. The Government are sensitive to all those considerations. Of course we understand the need to balance capability against safeguards, and as I said at the outset, I am mindful of the strength of the argument used when we last met about how we could be clearer about legitimising the operational case. I will leave it at that and invite him to withdraw his amendment.

[Keir Starmer]

I am grateful to the Minister for the way that he has set out his case and his indication of the Government’s approach. The question of safeguards is extremely important: it is vital for the Committee and the House to get it right. Rather than press these amendments, I will wait to see what response, if any, the Government make to the general case that I have made on a number of occasions about the balance between the code and the Bill and reserve my position for later stages of the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Mr Hayes]

I beg to move amendment 614, in clause 138, page 110, line 8, leave out subsection (4).

This amendment leaves out provision that is not relevant in the context of bulk acquisition warrants.

This is a technical amendment and I do not intend to make a great fuss of it unless anyone wants to ask me for more detail.

Amendment 614 agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

[Joanna Cherry (Edinburgh South West) (SNP)]

I wonder whether I might address the Scottish National party’s “leave out” amendments at this stage, Ms Dorries. On Friday, because the SNP had tabled “leave out” amendments to the whole of chapter 1 of part 6, I made some general comments about the overarching clause at the beginning of that chapter. With your forbearance and if it is acceptable to you, as clause 138 is the overarching clause at the beginning of chapter 2, I propose to do the same now.

--- Later in debate ---

[Keir Starmer]

The hon. and learned Lady, speaking for the SNP, made some important points and I want to pick up on one of them—a nagging concern on which clarification would be helpful. The bulk warrant process under this chapter and others presupposes two stages; first the acquisition of the data and then the examination of the data. I have already made my submission that, broadly speaking, the second stage ought to have a higher threshold than the first stage, for obvious reasons.

It is important to understand that there are actually four steps in a classic case. The first is obtaining data. The second is the first stage of the filtering or triage to deselect or not select all the data that are not needed. Jonathan Evans made a very powerful case on that stage, describing how clearing away all the data that the security and intelligence services do not need to consider, so that they can focus on what they do need to consider, is a major part of the task. The third stage is selecting the data they need to consider. The fourth stage is the examination of that selected material.

It is worrying that there is no reference at all in the Bill or in the code—I will be corrected, if I am wrong about the code, but I have looked—to the middle stage of filtering. We saw earlier that for comms data, when others had obtained them pursuant to a Secretary of State’s retention order, there were specific provisions for filtering. Here, for bulk powers, there are none—there is no mention of filtering in the Bill. Is it intended that the examination provisions serve two purposes—first, the filter purpose and secondly, the more specific access purpose? If so, what is to be specified in the warrant when it comes to operational purposes for examination? Is it the operational case for filter or the operational case for access? I suspect they would be different things. The operational case for filter would be, in the main, to move out of the way data that do not need to be looked at, and I am persuaded of the need for that. That would be one operational case, quite broad in nature; but the operational case for access would necessarily need to be more specific.

I am genuinely concerned that those steps are not apparent in the Bill. If they are implied, it would helpful to have on the record how the Minister sees that the provision covers the various steps. Without making the argument again, this point reinforces my argument that the test for examination of data ought to be higher than the test for acquisition or for filter. This is a very specific issue, but it is nagging because it is not in the Bill, whereas earlier on, there were clear provisions dealing with filter and how the filtering arrangements would work.

[Mr Hayes]

We have covered a lot of ground and rightly so, because this is an important part of the Bill and an important clause.

The hon. and learned Member for Holborn and St Pancras is right to say that there are several parts to the process. Paragraph 9.8 of the draft code of practice says:

“As well as being necessary for one of the operational purposes, any selection for examination of BCD must be necessary and proportionate.”

Paragraph 9.9 goes on to talk about the selection of those data, saying:

“In general, automated systems must, where technically possible, be used to effect the selection of BCD in accordance with section 151 of the Act.”

It talks about the filtering system and who should be authorised to be engaged in it, as well as the selection of data being categorised

“under the specified operational purposes”

and that the methodology used should remain

“up to date and effective.”

It then says that that process should be in accordance with the relevant provision of the legislation—clause 138, which is the point we are at in our considerations.

It may be that the code of practice could say something more about the stages the hon. and learned Gentleman described and set out the process slightly more chronologically, as he did, where that chronology is helpful to explanation. I understand that argument, but what is absolutely clear is that the whole of the process must be lawful and reinforced by both the fundamental test of necessity and the clarity provided by the operational purposes. I think that is the assurance that he seeks. I do not want to put words in his mouth, but I suspect that he was alluding to the possibility that the middle process—as he put it—might be less rigorous in respect of its relationship to the operational purpose. Perhaps that is not what he meant—but if it is, I can assure him that that is not the case.

[Keir Starmer]

I am grateful for that explanation. I read into the Minister’s observations and the code that triaging or filtering is part of the examination process—it must be, by definition—and is therefore subject to the further requirements of examination. It is helpful to have how it works on the record, but it would be helpful to have that set out in the code, so that it is clear. The remaining concern is that there is a danger that for filtering purposes what is said about the operational case may be fairly general, but for access it may not be. There are two aspects to examination and there is a danger that the warrant either says too little or too much, depending on which purpose one is dealing with. I suspect that that will happen in most cases, because this is going to be a common process.

[Mr Hayes]

That is an extremely well made point, because the case made for the warrant has to be sufficient to persuade the Secretary of State that it is right to issue it. The case made out for the warrant has to be sufficiently specific to colour the rest of what occurs, to help to define the process the hon. and learned Gentleman describes. However, to return to the argument I made in the earlier debate, by its very nature the collection of bulk material is about taking fragments of information that one then pieces together through this process. The hon. and learned Gentleman is right that a balance has to be struck between that specificity and the very virtue that comes from broader examination of data. Where we might be able to reach common ground, as he put it, is on the character of the explanation in the draft code of practice. Perhaps we can set down what I have just said and what the hon. and learned Gentleman has requested in a slightly different way, which would help the first examination of the information. I hope that is of assistance.

[Keir Starmer]

I am grateful.

[Mr Hayes]

The hon. and learned Member for Edinburgh South West has again added to our considerations with the thoroughness of her analysis, for which I am grateful. She quoted Burns, to which I shall return later.

Access to bulk communications will be limited to security and intelligence agencies; it must be for an operational purpose specified in the warrant and be necessary and proportionate. As the hon. and learned Gentleman said, it must be for one or more considerations of national security, serious crime or economic wellbeing where it is linked to national security. On that we agree, but the clause makes it crystal clear that the operational purposes must relate to one or more of the grounds for which the warrant is considered necessary. For example, if a bulk acquisition warrant is issued in the interests of national security and for the purposes of preventing or detecting serious crime, every specified operational purpose on that warrant must be necessary for one or both of those two broader purposes. Operational purposes must also include more detail than the statutory grounds, to ensure that the Secretary of State is provided with a granular understanding of the purposes for which the selection examination may take place. If the Secretary of State does not consider every operational purpose to be necessary, the warrant may not be issued. Therefore this is not a permissive process—far from it. It is designed to determine all that happens after the issuing of a warrant.

--- Later in debate ---

[Joanna Cherry]

I read last night very carefully what the Chair of the ISC, the right hon. and learned Member for Beaconsfield (Mr Grieve), said on Second Reading. He had three concerns, which were,

“the authorisation procedures for the examination of communications data… the agencies’ use of equipment interference”

and,

“the process for authorising the obtaining of bulk personal datasets”. —[Official Report, 15 March 2016; Vol. 607, c. 837-8.]

Does the Minister agree with me that a careful reading of the hon. and learned Gentleman’s remarks leads to the conclusion that he had outstanding concerns about the bulk powers?

[Mr Hayes]

In your absence, Ms Dorries, I have said that part of my mission was to take the hon. and learned Lady from the fog of doubt to the light of understanding, and earlier she herself described a chink of light. I am happy to consider what more we might do on the operational case. I do not want to go too far on that, because I have to look closely at walking the tightrope between what we can and cannot say publicly about the work of our intelligence and security services. Nonetheless, a powerful case was made on that subject and it is a matter of continuing interest to us.

The hon. and learned Lady quoted at length the evidence from America, but she will know that, in fact, the evidence from America is extremely mixed. A series of pieces of work has been done on these matters. In July 2014, the US Privacy and Civil Liberties Oversight Board said on bulk data collection that:

“Overall, the Board has found that the information the program collects has been valuable and effective in protecting the nation’s security and producing useful foreign intelligence…The program has proven valuable in the Government’s efforts to combat terrorism as well as in other areas of foreign intelligence…the program has led the Government to identify previously unknown individuals who are involved in international terrorism, and it has played a key role in discovering and disrupting specific terrorist plots”.

That builds on earlier work done in the United States to examine the powers. In 2012, the Senate looked at these matters and came to similar conclusions. It is not fair to say that international experience is at odds with what we are doing and with what we are cementing in the Bill. I know that the hon. and learned Lady, being scrupulously fair and reasonable, would want to put a balanced position on the American experience.

[Joanna Cherry]

I am grateful to the Minister for giving way so that I can put a balanced position. The Privacy and Civil Liberties Oversight Board’s report of January 2014 talks at page 11 specifically about the bulk telephone records programme, saying that:

“Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack”.

That is what the board concluded about the bulk telephone records programme in the United States of America, which is closest to what we are discussing at present in chapter 2.

[Mr Hayes]

Ms Dorries, I am sure that you will not permit me to stray too far into a detailed consideration of how the United States has viewed these matters, but I simply say to the hon. and learned Lady that the Senate Committee that I mentioned in 2012 described the,

“ability to collect information and act quickly against important foreign intelligence targets”,

as significant. The US National Academy of Sciences report, “Bulk Collection of Signals Intelligence: Technical Options”, said that:

“For investigations that have little or no prior targeting history, bulk collection may be the only source of useful information”.

I could go on and on, but to do so would tire the Committee and no doubt put me on the wrong side of the Chair, so I will not.

To conclude, we have had a long but important debate about this issue. The use of the powers under the Bill is subject to oversight by independent judges, the Interception of Communications Commissioner and the Intelligence and Security Committee, and none of them has raised concerns about the lawfulness of the powers. The hon. and learned Member for Holborn and St Pancras rightly said that, for the first time, we are considering these matters in a single piece of legislation and enjoying this debate. It is right that we should do so and that we should put safeguards into place, but it is just as right that we should maintain the capabilities necessary to deal with threats to our national security. I say without equivocation or hesitation that the powers are critical to that purpose and must continue to be used in our national interest.

Question put, That the clause, as amended, stand part of the Bill.